REGULATION OF ALCOHOL ADVERTISING IN AUSTRALIA: DOES THE ABAC SCHEME ADEQUATELY PROTECT YOUNG PEOPLE FROM MARKETING OF ALCOHOLIC BEVERAGES?

This paper examines regulation of alcohol advertising regulation in Australia. Specifically, it considers whether the alcohol industry’s code of conduct, the Alcohol Beverages Advertising Code (‘ABAC’) operates as an effective form of industry-based regulation, focusing on provisions that prohibit alcohol advertising in media directed to children and young people, and advertising content or messaging that appeals to minors. The paper sets out a framework for effective self-regulation and applies it to the substantive provisions and regulatory processes established by the ABAC Scheme. The paper finds that the substantive rules found in the ABAC contain a number of significant loopholes, including a failure to adequately restrict the placement of alcohol promotions or to regulate alcohol industry sponsorship. Further, the ABAC Scheme lacks independent administration, systematic monitoring, or meaningful sanctions for responding to non-compliance. Accordingly, regulatory processes lack transparency and accountability, undermining the credibility and efficacy of the Scheme. The paper concludes by outlining a phased or responsive approach to creating a regulatory regime that protects young people more effectively from exposure to alcohol marketing.


INTRODUCTION
Alcohol consumption poses significant risks to children and young people, 1 and for those less than 18 years of age, not drinking is deemed the safest option. 2 While the proportion of young people aged 12-17 years who drink alcoholic beverages has declined, 3 alcohol use among adolescents remains prevalent, with 9.1 per cent of males and 6.8 per cent of females in this age group exceeding adult guidelines for single occasion risky drinking. 4 Alcohol use by young people is associated with a range of harms, including violence, unintentional injuries, depression, and psychological benefits resulting from consuming alcohol. 15 A significant body of research (including longitudinal studies and systematic reviews) suggests that exposure to alcohol advertising influences the likelihood that young people will begin drinking, that those already drinking will increase their intake, or that they will engage in risky drinking. 16 Accordingly, the World Health Organization identifies both the extent of young people's exposure to alcohol marketing, and the content of such marketing (i.e., its appeal to young people), as crucial issues in reducing the harmful use of alcohol by minors, 17 as well as calling for comprehensive regulation that restricts and reduces alcohol advertising overall. 18 Similarly, voluntary industry codes on alcohol advertising often contain both 'content' and 'exposure' guidelines, which restrict alcohol advertising to media where the majority of the audience consists of adults, and prohibit advertising content that appeals to or targets minors. 19 This paper examines the regulation of alcohol advertising in Australia, specifically the ABAC Responsible Alcohol Marketing Code ('ABAC'), and whether it contains the building blocks of an effective self-regulatory scheme. The regulatory framework for alcohol marketing is complex, but a key component is the industry-based scheme centred on the ABAC. The Code contains a series of standards on the responsible promotion of alcoholic beverages, including a prohibition on advertisements that have strong or evident appeal to minors, and rules that aim to prevent alcohol advertising from being targeted to minors, based on its placement in media with large audiences of young people, or directed to minors based on its content. 20 The ABAC Management Committee administers the Code, while the ABAC Adjudication Panel hears public complaints about non-compliance. 21 A pre-vetting service is available to ensure compliance with the ABAC prior to the publication or broadcast of alcohol advertisements. 22 The alcohol industry describes the ABAC Scheme as 'quasi-regulatory', citing federal government representation on the ABAC governments in Western Australia and South Australia have responded by announcing new restrictions on alcohol advertising on public transport and related infrastructure. 30 However, successive federal governments have rejected calls to introduce comprehensive legislative bans on alcohol advertising. 31 In light of concerns about the effectiveness of alcohol advertising regulation in Australia, this paper undertakes a critical evaluation of the ABAC Scheme and whether it contains the building blocks of an effective self-regulatory regime. This involves examining the substantive rules contained in the ABAC, focusing on those that aim to protect young people from advertising content that appeals to this age group. It also evaluates whether the ABAC's new placement rules adequately protect young people from exposure to alcohol advertising. Given that scientific research links exposure to alcohol advertising with young people's drinking behaviours (irrespective of the target audience of that advertising), reducing young people's total exposure to alcohol advertising is an appropriate objective for alcohol advertising regulation (rather than simply restricting advertising directed to minors), as recognised by the WHO. A second part of the analysis evaluates the governance processes established by the ABAC, including administration, monitoring, enforcement, and review.
To undertake this analysis, the paper uses a framework for effective self-regulation drawn from literature on public health governance, empirical and theoretical studies of regulation, including advertising regulation, and government and non-government guides on designing regulation. After briefly reviewing regulation of alcohol marketing in Australia, the paper applies this framework to the ABAC's substantive rules, focusing on the provisions that are concerned with alcohol advertising's impact on minors. The framework is then applied to the regulatory processes established by the ABAC Scheme. The paper also uses determinations from the ABAC Adjudication Panel to illustrate the Panel's interpretation of the ABAC's provisions on advertising that appeals to or is directed to minors, and to describe the strengths and limitations of these provisions. 32 Drawing on the theory of responsive regulation, the paper concludes by making recommendations for progressively strengthening regulation of alcohol advertising in Australia, with the objective of protecting young people better, from exposure to alcohol marketing.

II
A FRAMEWORK FOR EFFECTIVE SELF-REGULATION This paper draws on public health studies concerned with effective regulation of the industries that produce products harmful to health, including tobacco, food, and alcohol. 33 These industries are 30 Ibid 4. 31 Jones and Gordon, above n 26, 2. 32  conceptualised as vectors of the 'industrial epidemic' of chronic disease due to their influence on unhealthy consumption patterns and on public health policy. 34 Accordingly, a (relatively) new concern for public health researchers is the design and implementation of measures that regulate the products and practices of these industries, for example, restrictions on marketing, taxes on the products themselves, and planning laws that restrict the opening of new retail outlets. 35 In addition, public health researchers investigate whether voluntary or collaborative initiatives with the food and alcohol industries can be effective in achieving public health goalsand if so, in what circumstances. 36 The theoretical approach taken here is also situated within the discipline of 'regulatory studies', that is, empirical and theoretical investigations of regulation in areas such as environmental protection and workplace health and safety. 37 The effective design of regulation is a central concern of regulatory scholars, meaning that the regulatory studies literature offers important insights to those investigating regulatory initiatives that impact on public health, as with alcohol advertising restrictions. Regulatory scholars argue that the effectiveness of self-regulation 'varies enormously among industries', 38 depending on the social and economic environment of selfregulation as well as the institutional design of voluntary schemes themselves. 39 However, researchers describe some general factors that are more likely to make it successful, and specify processes and principles for designing effective regulation. 40 These are the focus of this paper.
Drawing upon these two bodies of literature, Table 2 provides a framework for the design and implementation of effective, transparent, and accountable self-regulation, covering both the substantive rules and provisions contained in self-regulation, and processes for administering, monitoring, and enforcing voluntary regimes. 41 The recommendations contained in Table 2 Ibid. 41 There is a range of other factors that influence the success of a regulatory regime, eg the structure of the regulated industry, whether there is an industry body that can act as an effective regulator, and whether there is industry-wide

Review
Regular, independent reviews of the scheme's operation, using baseline data and performance indicators. 48 Enforcement Complaintshandling A fast, easily accessible complaints handling mechanism; complaints determined by an independent body that possesses significant sanctions. 49

Enforcement
A wide range of enforcement options, including both incentives and deterrents, promotional and educational activities that raise the profile of self-regulation. 50 Turning first to the substantive content of self-regulation, literature on regulatory design recommends that voluntary schemes contain clear terms and definitions, as well as ambitious, evidence-based objectives, and regulatory rules that are expansive enough to achieve these objectives. 51 Second, the design of regulatory processes is critical to the transparency and accountability of self-regulation, and in turn, the extent to which external parties have confidence in these schemes, and perceive them as a legitimate form of governance. 52 Accordingly, effective self-regulation contains mechanisms for fostering transparency and accountability to affected parties outside the industry, for example consumers, NGOs and governments. 53 Transparency and accountability mechanisms include independent third party monitoring of participants' compliance, and of the overall success of the scheme, 54 as well as the inclusion of external representatives in the initial processes of code development.
Complaints from the public typically trigger enforcement processes attached to advertising codes of conduct. Thus, it is crucial that codes provide a fast, easily accessible, and independent complaints handling mechanism, 55 accompanied by enforcement options for cases of noncompliance. 56 Punitive sanctions should be available to deter non-compliance and to support the use of softer enforcement methods (for example, persuasion and education), if self-regulatory schemes are to be effective. 57 Monitoring and enforcement should also be accompanied by independent, regular review of self-regulatory schemes, as well as by education and promotional activities that raise the profile of the scheme with both the public and the regulated community. 58 These recommendations for the design of effective self-regulation operate within a responsive regulatory strategy drawn from the work of Ian Ayres and John Braithwaite. 59 Ayres and Braithwaite propose a staged approach to regulation, where governments begin their regulatory efforts with the least intrusive forms of regulation and move to more legalistic and coercive regulatory measures only where an industry proves unwilling or unable to self-regulate. 60 In previous research on public health governance, Belinda Reeve and Roger Magnusson have built upon this approach by suggesting that governments progressively 'scaffold' voluntary public health initiatives with more demanding regulatory requirements (including the measures set out in Table 2), for example, by setting the objectives for voluntary schemes to achieve, or by creating independent monitoring mechanisms. 61 However, this approach relies on close government supervision of self-regulation and the capacity and willingness to intervene with statutory regulation, if quasi-or co-regulation fails to achieve meaningful public health objectives, such as reducing young people's exposure to alcohol advertising.

III REGULATORY CONTROLS ON ALCOHOL MARKETING TO YOUNG PEOPLE IN AUSTRALIA
Alcohol advertising is subject to the Competition and Consumer Act 2010 (Cth), containing the Australian Consumer Law, which prohibits misleading and deceptive conduct in trade or commerce, including misleading and deceptive advertising. 62 Alcohol advertising is also subject to regulation under state Liquor Acts, which regulate the wholesale and retail sale of alcohol, and prohibit certain forms of promotion by licensees (pubs, clubs, restaurants, and wholesalers). This includes promotions that are likely to have special appeal to minors because of the use of design features likely to be attractive to them, or which are likely to be attractive to minors for any other reason. The Broadcasting Services Act 1992 (Cth) sets out regulatory requirements for television and radio broadcasting services (and online content), and establishes a licensing system for commercial television and radio broadcasters. 64 The Australian Communications and Media Authority ('ACMA') monitors the broadcasting industry, enforces licence conditions, and performs other regulatory functions, including determining standards for broadcast licensees. 65 These include the Children's Television Standards 2009 ('CTS 2009'), which oblige licensees to broadcast a certain amount of dedicated children's programming per year (C and P programs). The CTS also regulate the scheduling, volume and content of advertisements broadcast during designated children's viewing times, 66 known as C and P periods. 67 Relevantly, CTS 26 prohibits advertising for alcoholic drinks during C periods, during C or P programs broadcast outside C periods, or in a break immediately before or after any C or P program. Further, no advertisement or sponsorship announcement broadcast during a C period may identify or refer to a company, person, or organisation 'whose principal activity is the manufacture, distribution or sale of alcoholic drinks'. 68 The CTS have a number of limitations, including that they do not apply to times of the day when large numbers of children are watching television. Television audience data shows that the most popular weekday viewing period for children aged 5-12 years is from 6-10pm (peaking at 7-8pm), which largely falls outside the times to which the CTS apply. 69 The Broadcasting Services Act 1992 (Cth) creates a co-regulatory framework 70 whereby broadcasting industry groups create codes of practice for their particular sector, 71 which are then registered by the ACMA. 72 One of these codes is the Commercial Television Industry Code of Practice (the 'Free TV Code'), 73 which applies to all free-to-air television programming. The Code establishes a system for classifying program material and commercials, and provides for the scheduling of programs and commercials in the appropriate classification zone. 74 Television advertisers (rather than broadcasters) are also 'expected to comply' with the Australian Association of National Advertisers' ('AANA') self-regulatory codes (described below), and with the ABAC. 75 The Free TV Code regulates the broadcast of commercials for alcoholic drinks, defined as 'a Commercial that directly promotes the use or purchase of one or more Alcoholic Drinks'. 76 Commercials for alcoholic drinks must only be broadcast:  During M and MA15+ classification zones (except between 5:00 and 6:00am and 7.30 to 8.30pm); 77  As an accompaniment to a Sports Program on a weekend or a public holiday (regardless of the time of day), or  As an accompaniment to the broadcast of a Live Sporting Event (where certain conditions are met). 78 The effect of these provisions is that commercials for alcoholic drinks can only be broadcast between 8.30pm and 5:00am and 12:00 to 3:00pm on school days, and between 8.30pm and 5:00am on weekends and public holidays, except where broadcast during a sports program on a weekend or public holiday, or during a televised live sports event (at any time). This exemption for sports programs and live sports events significantly limits the efficacy of these restrictions.
One study found that a quarter of all alcohol advertising broadcast on television was shown during sports television programming; and during the day, the majority of alcohol advertisements were broadcast in sports (87 per cent) rather than non-sports programming (13 per cent). 79 This loophole leaves thousands of children and adolescents vulnerable to exposure to a large number of alcohol advertisements, particularly given the large number of children who watch televised sports events and sports programs. 80 A central component of advertising regulation is self-regulation by the advertising industry. The AANA runs the industry's self-regulatory system, which consists of a series of voluntary codes of conduct on advertising and marketing (applying across all media and to all advertisers); an independent complaints hearing mechanism (the Advertising Standards Community Panel); and 75 Ibid cl 5.7.1. 76 Ibid cl 8. The definition excludes program sponsorship announcements that make no direct reference to the price of goods or services, commercials that do not directly promote an alcoholic drink for an entity or company that participates in the manufacture, distribution or sale of alcoholic drinks, a commercial where alcohol or a brand associated with alcohol is incidental and any alcohol consumption responsibly depicted, and a commercial for a licensed restaurant or club, entertainment venue, tourist attraction or dining establishment. 77  the Advertising Standards Bureau, the Panel's administrative arm. 81 The centrepiece of the system is the AANA's Code of Ethics, 82 which is supplemented by four codes that deal with specific areas of marketing, including the Code for Marketing and Advertising Communications to Children. 83 This code states that advertising to children 'must not be for, or relate in any way to, Alcohol Products, or draw any association with companies that supply Alcohol Products '. 84 Industry bodies in Australia have developed product-specific or media-specific advertising codes of conduct, which apply in addition to the codes developed by the AANA. The ABAC falls into this category, as does the Outdoor Media Association ('OMA') Code of Ethics, 85 which sets standards for outdoor advertising. The OMA's Code of Ethics states that outdoor media agencies must only display advertisements that comply with the ABAC, 86 and which have been vetted by the Alcohol Advertising Pre-vetting Service. 87 An additional set of Alcohol Advertising Guidelines prohibit the display of alcohol advertising on fixed signs that are located within a 150 metre sight line of a primary or secondary school. 88 However, this restriction does not apply if the school is located in the vicinity of a club, pub or bottle shop, or any other venue that sells alcohol products. 89 Health advocates have criticised the limited scope of the OMA's rule on the placement of alcohol advertising, particularly given its exemptions. 90  ABAC adequately protects young people from alcohol advertising. 95 The most influential of these was an investigation led by the Ministerial Council on Drug Strategy and performed by the National Committee for the Review of Alcohol Advertising ('NCRAA') (a sub-committee of the Intergovernmental Committee on Drugs) in 2003. 96 The inquiry led to significant changes to the ABAC Scheme, with a representative of the federal Department of Health and Ageing included in the Management Committee, and a public health expert included in the ABAC Adjudication Panel. 97 Further amendments to the ABAC took place in 2009 and in 2013, following a review of alcohol advertising regulation in Australia by the (now abolished) Australian National Preventive Health Agency ('ANPHA'), 98 as well as a review of the ABAC Scheme conducted simultaneously by the alcohol industry itself. 99 Among other changes, these two reviews led to the adoption of a much more detailed standard on alcohol advertising's appeal to minors. 100 In 2017, further amendments to the ABAC were announced, restricting the placement of alcohol advertising for the first time. 101

A The ABAC's Substantive Rules and Provisions
Having described the ABAC Scheme, this section of the paper analyses the substantive rules contained in the ABAC, with a particular focus on rules relating to alcohol marketing that is directed to or has appeal to minors, as well as the ABAC's objectives. Drawing on Table 2, this section explores whether these provisions protect children and young people sufficiently from advertising content that has strong or evident appeal to this age group, or from exposure to alcohol advertising, irrespective of its target audience. Voluntary codes should describe the goals they aim to achieve, and include an explicit set of objectives that relate to these goals. 102 Objectives should be measurable, specific, and time bound, ensuring that self-regulation's success or failure can be quantified through monitoring and audits. 103 Concrete targets also enable information about companies' performance to be collected and analysed, and comparisons to be made between companies (benchmarking). 104 The capacity for objective assessment of the performance of the scheme also enhances its credibility. 105 The ABAC's preamble states that it is designed to ensure that alcohol is marketed in a responsible manner, and that signatories are committed to ensuring that their marketing complies with the Code's spirit and intent. 106 The first objective is vague and open to interpretation and is not linked to specific targets for signatories, or for the Scheme more broadly, to achieve. As a result, it is difficult (if not impossible) to measure any concrete changes in alcohol advertising practices that can be said to flow from compliance with the ABAC. A more meaningful objective (in relation to alcohol advertising's impact on minors) would be reducing young people's exposure to alcohol advertising, and the persuasive power of alcohol advertising in relation to minors, as recommended by the WHO. 2

Media Channels and Marketing Techniques Covered by the ABAC
Under section 2(a), the Code applies to all 'Marketing Communications in Australia generated by or within the reasonable control of a Marketer'. 107 This includes (but is not limited to): brand advertising; competitions; digital communications (including in mobile and social media and user generated content); product names and packaging; 108 alcohol brand extensions to non-alcohol beverage products; point of sale promotions; and marketing collateral. 109 As such, the ABAC applies to a wide range of media and marketing techniques, and also applies to both manufacturers and retailers, including breweries, supermarkets and restaurants, if they advertise alcoholic beverages. 110 The wording of section 2(a) provides a non-exhaustive list of different types of marketing communications, permitting the Adjudication Panel to interpret the Code as applying to marketing techniques not expressly mentioned in the ABAC. For example, the Panel has held that the Code applies to product placement, 111 and to posts on Instagram by a social media 'influencer' hired to promote alcohol beverages, because these posts were within the reasonable control of the manufacturer. 112 The Code continues to exclude some media channels and promotional techniques, including cinema advertising. In one determination, the Panel noted that the screening of an alcohol advertisement prior to a G-rated movie did not, of itself, breach the ABAC, nor any other applicable law or regulation. 113 Section 2(b) also explicitly excludes sponsorship, 114 and as a result, the Panel cannot rule on complaints concerned solely with the direct manifestations of sponsorship arrangements, although it will examine advertisements that flow from, or relate to sponsorship deals. 115 This exclusion is a critical loophole in the Code, as young people are widely exposed to alcohol promotions through sports sponsorship arrangements, 116 and sports sponsorship is shown to influence children's and parents' brand recall and beliefs, as well as their preferences for sponsoring companies' products. 117 A number of complaints to the Adjudication Panel have concerned children being exposed to alcohol promotions via alcohol industry sponsorship of sports events, 118 including via alcohol brands and logos on sports uniforms, 119 and signage at venues, 120 which were then broadcast during televised sports events. 121 In its determinations on these complaints, the Panel noted that it could not review these promotions as they were manifestations of sponsorship arrangements, although the Panel has made determinations on product packaging that formed part of a sponsorship deal and was promoted in a series of advertisements (described below). 3

Restrictions on Content That Has Strong or Evident Appeal to Children
Section 3 of the Code sets out the standards to be applied in alcohol advertising, including those relating to the responsible and moderate portrayal of alcohol, responsible depiction of the effects of alcohol, alcohol and safety, and 'Responsibility toward Minors', defined as a person under the age of 18 years. 122 Section 3(b) prohibits alcohol marketing that has 'Strong or Evident Appeal to Minors', depictions of a person who is or appears to be a minor, 123 or of adults under 25 years of age. 124 It also prohibits alcohol marketing that is directed at minors through a breach of the placement rules (discussed below). Section 6, the Code's definition provision, defines 'Strong or Evident Appeal to Minors' as:  Likely to appeal strongly to Minors;  Specifically targeted at Minors;  Having a particular attractiveness for a Minor beyond the general attractiveness it has for an adult;  Using imagery, designs, motifs, animations or cartoon characters that are likely to appeal strongly to Minors or that create confusion with confectionary or soft drinks; or  Using brand identification, including logos, on clothing, toys or other merchandise for use primarily by Minors.
Section 3(b) contains a relatively expansive provision on alcohol advertising's appeal to minors, and the Adjudication Panel interprets this provision to encompass promotions that have strong or evident appeal to minors, and to other age groups. In other words, a promotion does not need to appeal to minors exclusively if it is to breach the ABAC. Further, section 5 (on 'interpretation') states that the compliance of alcohol marketing with the ABAC 'is to be assessed in terms of the probable understanding of the Marketing Communication by a reasonable person to whom the material is likely to be communicated and taking its content as a whole'. Accordingly, an advertisement can breach the ABAC if it can be said objectively that the promotion has strong or evident appeal to minors, regardless of whether young people were the advertiser's intended audience. In 2017 the Adjudication Panel upheld a complaint about limited edition packaging for a beer brand (and a series of print and digital advertisements promoting this packaging), which linked the beer to the brewer's sponsorship of a rugby league team. 125 The Panel held that the limited edition packaging (which was designed to resemble the team's jersey), gave the beer a novelty value and the status of a collectable item. According to the Panel, the combination of these features meant that the packaging would have strong or evident appeal to minors, 126 despite the fact that rugby league has broad appeal to a range of age groups, and that the packaging would have appealed to adults as well as to minors. 4

Restrictions on the Placement of Alcohol Advertisements
The impact of the standard on advertising's appeal to minors has been undermined by the fact that the ABAC did not (until 2017) regulate the placement of alcohol beverage promotions. 127 As such, the broadcast or publication of an alcohol advertisement in media with a large audience of young people did not, in itself, breach the ABAC. Arguably, it undermines the value of restrictions on advertising content that has strong or evident appeal to minors if children and young people are still exposed to a large amount of alcohol advertising (irrespective of that advertising's target audience), including in media that is clearly directed to minors. 128 The lack of placement restrictions has been problematic in relation to digital media, particularly given the alcohol industry's growing use of digital platforms to promote its products. 129 One 2016 complaint to the Adjudication Panel concerned the complainant's child being exposed to posts about alcohol products via an Instagram account that belonged to a social media influencer. 130 However, the complaint was dismissed as the ABAC (at that time) did not require age-gating of social media or other internet sites, and the content of the post could not be said to have strong or evident appeal to minors. Accordingly, while the ABAC may have restricted advertising content that had strong or evident appeal to minors, prior to 2017 it did little to protect children from exposure to alcohol promotions (including in media that was clearly targeted to children), which the WHO (and public health advocates) have identified as an important objective for effective alcohol advertising regulation. 131 In 2017 the alcohol industry introduced new restrictions on the placement of alcohol advertisements in media directed to children, which aimed to address this loophole. Contained in section 6 of the ABAC, the 'placement rules' require compliance with all applicable mediaspecific codes regulating the placement of alcohol advertising. The rules also require signatories to use age restriction controls on digital platforms, where available. Where not available, alcohol advertisements must only be placed in media with an audience of at least 75 per cent adults. The placement rules additionally prohibit alcohol marketing communications in programs or content 'primarily aimed at minors', as well as sending electronic marketing communications to minors. 132 While it is a positive step for the ABAC to include provisions on the use of age related controls on digital media, attempts to prevent minors from viewing digital advertising are not always particularly effective. 133 Accordingly, the requirement that signatories use age restriction controls will not necessarily reduce young people's exposure to digital alcohol advertising. For example, age-gating is used on the websites of alcohol brands (by requiring users to enter their birth date), but is easily circumvented by minors entering a false birth date into the site. 134 One study found that while Twitter's age-gating requirements prevented fictitious 14 year old and 17 year old users from following the official pages of the 25 alcohol brands, these users could still view video and picture content, like, and re-tweet posts from alcohol industry feeds or pages, and interact with content in other ways. 135 Similarly, Instagram prevents users under the age of 18 years (or those who have not entered a birth date in their account) from following alcohol brand pages or from being shown paid alcohol advertising. 136 However, these controls appear not to apply to posts made by social media influencers, 137 and re-posts or shares of posts can still be viewed by minors. 138 It is questionable whether the ABAC's other placement restrictions will have any impact on young people's exposure to alcohol advertising. The majority of media have an audience share consisting mainly of adults, because minors comprise a relatively small proportion of the total population -less than 25 per cent. 139 For this reason, even when a particular medium has large absolute numbers of viewers aged less than 18, adults will still generally comprise the majority of the audience. Accordingly, minors can still be exposed to alcohol advertising in programs such as Masterchef, which are watched by large absolute numbers of adults and minors. 140 The placement restrictions also exclude cinema and outdoor media (including bus shelters and train stations, as well as billboards), which are subject only to the OMA's (weak) guidelines on outdoor alcohol marketing. 141 In several complaint determinations the Adjudication Panel has commented on when television programs or other media content will be considered 'primarily aimed at minors', for the purposes of the placement rules. When interpreting this phrase, the Panel has said that it will consider matters such as the audience composition of the program, its subject matter, whether it has themes likely to predominantly appeal to minors, the use of techniques such as familiar children's characters, and the complexity of the storyline. 142 Importantly, the phrase 'primarily aimed at minors' is narrower than the phrase 'strongly or evidently appealing to minors' and it is possible for a program to be strongly or evidently appealing to minors while not primarily aimed at this age group. 143 Further, a program that has appeal across a range of age groups, including but not limited to minors, will generally not be 'primarily aimed at minors'. 144 This interpretive approach excludes general audience programs which have appeal to family audiences, including both adults and children. 145 Thus, while the ABAC may prevent promotions being placed in media that are clearly targeted to minors, the new placement restrictions seem unlikely to have a significant impact on the overall volume of alcohol promotions viewed by young people. As such, the ABAC does not deal adequately with the cumulative impact of young people's exposure to a large number of alcohol advertisements across a range of different media. 146

B The Regulatory Processes Established by the ABAC Scheme
Having considered the loopholes in the substantive rules contained in the ABAC, this paper now describes the regulatory processes established by the ABAC Scheme and analyses them against the criteria set out in Table 2. 1

Code Development
Including representation from multiple interests in the process of code development can help to enhance the transparency of self-regulation. 147 External stakeholder representation can also help to identify the problems that self-regulation should address, and ensure that self-regulation's goals reflect its underlying public purpose. 148 A range of parties had input into the development of the ABAC, including both government and industry bodies. 149 This increased the transparency of the code development process, but the Management Committee appears not to have engaged in consultation with external stakeholders when making subsequent amendments to the Code, including when introducing the new placement rules. 150 This undermines the transparency and accountability of the Scheme, and leaves it open to the criticism that it reflects industry interests rather than public objectives. 151 2 Administration Effective self-regulation is administered in a fair and transparent manner by an accountable, independent body. 152 Often, industry associations incorporate an administrative committee into their existing infrastructure. 153 Such committees should include representatives from external stakeholder groups such as governments, consumer organisations and NGOs, 154 thus enhancing the transparency of administrative processes, ensuring that they reflect multiple viewpoints, and making industry based schemes more likely to be accepted as legitimate forms of regulation by external stakeholders. 155 Central to the ABAC's administration is the ABAC Management Committee, which comprises an independent chair, members of three industry bodies representing the wine, spirits and beer sectors, and a representative of the federal Department of Health and Ageing. 156 The Committee monitors and reviews the operation of the ABAC Scheme, amends the terms of the ABAC, and coordinates the creation of an annual report. 157 The Committee also administers the Alcohol Advertising Pre-Vetting Service, 158 which involves two individuals from outside the alcohol industry reviewing alcohol advertisements for compliance with the ABAC and the AANA Code of Ethics prior to the advertisement's broadcast or publication. 159 Government representation on the Management Committee subjects the ABAC Scheme to some degree of government oversight, but the Management Committee remains industry dominated, creating an imbalance between the different interests represented on the Committee. 160 Both the independent chair and the government representative can be outvoted if there is a difference of opinions between Committee members, given that the majority of the Committee are industry representatives. 161 A fully independent management bodyor at least one with equal representation of interests -would enhance the Scheme's public credibility, provide greater separation between the self-regulatory structure and the industry, and lessen the dominance of the alcohol industry bodies in the Scheme. 162 3 Monitoring Voluntary schemes should incorporate tools for collecting data and monitoring companies' compliance. For example, administrative committees can monitor codes by systematically reviewing advertising and the extent to which it complies with relevant codes of conduct. 163 Regular monitoring and report identifies systemic problems in the scheme and areas for improvement, 164 enables participants to improve compliance, 165 and facilitates external scrutiny of the scheme's effectiveness, enhancing public confidence in its operation. 166 Annual reporting on the operation of the ABAC Scheme enhances its transparency and enables some degree of public scrutiny of its operation. However, there is no proactive monitoring of alcohol marketing's compliance with the ABAC, or of young people's exposure to alcohol promotions. 167 The Scheme relies solely on consumer complaints to bring any instances of noncompliance to the attention of the Adjudication Panel. 168 A complaints driven system allows a significant number of non-compliant promotions to remain in the market, as the number of people who are likely to complain about an offending advertisement tends be low, particularly where awareness of the relevant self-regulatory scheme is low, as is the case with the ABAC. 169 Some of the concerns about the lack of monitoring may be addressed by the Alcohol Advertising Pre-Vetting Service, which reduces the number of complaints and provides some protection from exposure to non-compliant advertisements. 170 However, pre-vetting is not mandatory for all forms of alcohol promotion, 171 including promotions from companies that are not ABAC signatories (although non-signatories are able to use the service). 172 Further, the Panel has upheld complaints about pre-vetted advertisements, indicating that the pre-vetting service does not necessarily prevent all instances of non-compliance. A number of studies also suggest that the provisions on alcohol advertising's appeal to children are regularly breached by advertisers, 173 despite the existence of pre-vetting services. 4

Complaints Handling Mechanism
An independent, easily accessible complaints handling mechanism is crucial to the effective operation of advertising self-regulation, 174 as it enhances consumer confidence in the scheme and enables industry to identify and remedy systemic problems with its operation. 175 The publication of complaint determinations also enhances the transparency and credibility of the system, 176  The ABAC Adjudication Panel consists of a Chief Adjudicator with a legal background, two members with media or advertising industry backgrounds, and two public health representatives.
A public health representative sits on every three-person panel convened to hear a complaint. 178 Where the Panel upholds a complaint about the content of a marketing communication, marketers 'must' withdraw, modify or discontinue the communication within five days of the determination. 179 If the complaint concerns the placement of an advertisement, marketers must also take reasonable precautions to ensure that it will not be placed again in the location, time or manner that was found to breach the Code. 180 The Adjudication Panel determines the majority of complaints within a 30 day timeframe and produces relatively detailed decisions that describe the reasoning behind the Panel's decision, and decisions sometimes critique the ABAC's provisions.
There is also evidence of the development of precedent, with the Adjudication Panel using its determinations to create principles that it applies in subsequent determinations. 181 This enhances the consistency and predictability of its decision making.
While the Panel is nominally independent of the alcohol industry, researchers question the impartiality of the Panel's decision making, particularly as it is funded by a levy on the alcohol industry, and panel members are paid a retainer, plus an amount for each complaint heard. 182 One study compared determinations on 14 alcohol advertisements made by the Panel with the judgments of a six person panel of marketing, communications, and public health experts. 183 The ABAC Adjudication Panel dismissed all but one of the advertisements, yet a majority of the independent panel thought that eight of the advertisements breached the ABAC and only two did not (the panel was evenly split on the remaining four advertisements). The authors concluded that the Adjudication Panel's views did not adequately reflect community standards on alcohol advertising. 184 Such studies provide support for the argument that the Panel's interpretive approach limits the ability of the complaints handling mechanism to protect young people from noncompliant alcohol promotions. 185 5 Enforcement a regulatory agency, 197 which would significantly enhance the transparency and accountability of the ABAC Scheme.
In sum, the publication of documents such as annual reports lend the ABAC Scheme some degree of transparency and accountability, as does the complaints handling mechanism and the determinations published by the ABAC Adjudication Panel. There is also some degree of external input and oversight of the Scheme via government representation on the Management Committee, and public health representation on the Adjudication Panel. However, the ABAC Scheme lacks systematic, independent monitoring and review, and meaningful sanctions for non-compliance, undermining the transparency, accountability and thus the credibility of the Scheme. The governance processes established by the Scheme remain industry dominated, bringing into question whether external stakeholder representation can ensure that the public interest informs the operation of the ABAC.

V STRENGTHENING ALCOHOL ADVERTISING REGULATION
This paper has described loopholes in the ABAC's rules (particularly as they relate to alcohol advertising and minors), and limitations in the ABAC Scheme's governance processes, including the absence of effective monitoring, enforcement and review mechanisms. Further, regulatory processes remain industry dominated (despite public health and government involvement), undermining the accountability of the Scheme and its credibility as a regulatory system with important public health impacts. Despite new restrictions on the placement of alcohol promotions in media, the ABAC is still unlikely to prevent young people from being exposed to a high volume of alcohol advertising across a range of different media. 198 Alcohol advertising regulation could be strengthened by introducing a legislative ban on all forms of alcohol marketing. 199 However, a legislative ban would face significant resistance from the alcohol and advertising industries, and would be time consuming and expensive to implement. 200 As mentioned above, there appears to be little political appetite in Australia for comprehensive statutory restrictions on alcohol marketing. In light of the practical and political barriers to legislative bans on alcohol marketing, this paper proposes a phased approach to strengthening regulatory controls, drawing on the theory of responsive regulation and the concept of 'regulatory scaffolding' developed by Reeve and Magnusson. 201 Here, government would draw on increasingly coercive forms of regulation in order to close off the loopholes in the ABAC Scheme and to progressively tighten restrictions on alcohol marketing. Quasi-regulation can be defined as forms of government influence in voluntary regulatory schemes, falling short of statutory intervention. 202 While the first phase of this approach would maintain elements of the quasiregulatory approach currently represented by the ABAC Scheme, it would require more meaningful forms of government intervention than is seen in the ABAC at present.
Under Phase One, the Federal government could set targets for the ABAC to achieve, related to reducing young people's exposure to alcohol marketing, 203 and develop performance indicators for ABAC signatories, related to compliance with the Code. The government could also collect and analyse data on young people's level of exposure to alcohol marketing (creating a baseline against which to measure the effectiveness of the ABAC) and undertake periodic monitoring of the amount of alcohol advertising in different media, as well as compliance with the ABAC. The findings of these activities would be reported publicly, 204 enhancing the transparency and accountability of the scheme, and allowing for instances of non-compliance to be readily identified. Phase One would involve the creation of an independent committee to administer the ABAC, comprising balanced representation from a wide range of interests, including government, public health and alcohol control bodies. 205 This Committee would be charged with managing revisions to the ABAC (which would also involve processes of public and government consultation), and would be empowered to enforce the ABAC using a wide range of sanctions. 206 These would include naming and shaming non-compliant companies, for example through adverse publicity orders requiring companies to notify the public of changes made to non-compliant advertising, recall provisions for packaging breaches, and the option of financial penalties for serious repeat offenders. 207 An independent panel could be established to hear complaints about breaches of the Code, operating without funding from industry. 208 Regular, independent review by an external third party would strengthen the credibility and accountability of the ABAC Scheme, and provide another avenue for external engagement with the Scheme. 209 Phase One would also involve closing off the loopholes in the substantive rules found in the ABAC. This could include restrictions on alcohol advertising in media with an audience comprising a smaller percentage of minors than is found under the current placement rules (for example, 10 per cent or more people under the age of 18 years, as recommended by Gerard Hastings and colleagues), a comprehensive ban on all outdoor alcohol marketing within 150 metres of any school, playground, or childcare centre, and prohibitions on the screening of alcohol advertisements prior to movies with a less than R18+ rating. 210 It could also involve the creation of a more detailed standard on when the creative content of media will be considered primarily aimed at minors, for example, if media makes use of cartoon or animal characters. It may prove politically difficult to place tighter constraints on alcohol industry sponsorship of sports events, but this must be done in order to achieve meaningful reductions in young people's exposure to alcohol advertising. Improvements to the ABAC should also be accompanied by the removal of the loophole in the Free TV Code for alcohol advertising accompanying the broadcast of sports programs or sports events. 211 Phase Two would be triggered if monitoring demonstrated that the improvements introduced in Phase One had not led to significant reductions in young people's exposure to alcohol marketing. Under Phase Two the government would create legislative infrastructure that required government approval of the ABAC; mandatory compliance with the Code by all alcohol manufacturers, retailers and advertisers; mandatory use of the pre-vetting service for all promotions; and the progressive expansion of the Code's substantive provisions. For example, alcohol promotions could be banned on all digital platforms, and in all outdoor settings. 212 Administration, monitoring and enforcement of the ABAC could be shifted to a government department or agency. One way in which Phase Two could be implemented is via registration of the ABAC with the ACCC. This would subject the Code to an independent public review process, increasing the transparency of the Scheme, and set up the ACCC as the ultimate enforcer of the Code, thus giving it 'teeth' (as well as ensuring that sanctions are not seen as anti-competitive conduct). 213 This is an important step, given the industry's apparent reluctance to create any form of sanctions for non-compliance with the ABAC.
Phase Three controls would be triggered if monitoring and review exercises found that coregulation had failed to make meaningful progressin protecting young people from exposure to alcohol marketing. Phase Three would involve legislative bans on alcohol marketing on television during viewing periods with audiences comprising a large absolute number of young people (as determined by television audience data), as well as bans on promotions via other media channels with large audiences of young people. 214 It would also involve the mandatory phasing out of all sponsorship arrangements between alcohol companies and youth, cultural and music events, and with professional and community sports organisations. Such organisations would be assisted by government to obtain alternative, socially responsible funding. 215 Phase Three restrictions are an intrusive form of intervention that would face strong industry resistance. Based on the theory of responsive regulation, their true importance lies in the fact that they represent the 'big stick' with which government encourages industry to cooperate with 'softer' regulatory options, thereby avoiding the introduction of legislation. However, the success of this approach hangs on a credible threat by the federal government of progressively strengthening regulatory controls if existing measures fail to protect young people from exposure to alcohol marketing.

VI CONCLUSION
This paper has described significant loopholes in the ABAC's substantive rules, including a failure to regulate alcohol industry sponsorship and the placement of alcohol marketing adequately, despite the introduction of new placement rules in 2017. The regulatory processes established by the ABAC Scheme also have significant limitations, including lack of meaningful monitoring and enforcement mechanisms. Combined with industry dominated governance processes, these limitations undermine the transparency, accountability and credibility of the ABAC Scheme. The paper proposed a phased or responsive approach to progressively strengthening controls on alcohol marketing, which permits some degree of industry involvement in the operation of the regulatory scheme, but within a framework of much stronger government oversight and intervention. Critical to the success of this approach will be a credible threat of comprehensive statutory regulation if an improved (co-regulatory) scheme does not produce meaningful improvements in the alcohol advertising environment. Given the ABAC Scheme's significant gaps and limitationsand that it is unlikely to produce significant reductions in young people's exposure to alcohol advertising it is appropriate for the federal government to introduce more effective forms of alcohol advertising regulation.